WHY BREED-SPECIFIC LEGISLATION WON’T SOLVE THE DANGEROUS-DOG DILEMMA

Finally, Part III concludes that breed-specific legislation is an ineffective and inefficient means of combating the dog-bite epidemic.

This part argues that dangerous-dog laws are a more effective, albeit imperfect, solution to the problem and proposes non-breed-based supplemental legislation that can be enacted to reduce the public threat posed by dangerous dogs.

The Center for Disease Control warns that, each year, Americans have a one in fifty chance of being bitten by a dog. 19 Children are the most frequent bite victims, representing more than fifty percent of the total number of cases.20 Nearly half of all American children have been bitten before the age of twelve.21

There are three recurring commonalities in dog attacks.

First, most dog bites occur in the home or another familiar place, with the vast majority of biting dogs belonging to the victim’s family or friend.30 Second, most attacks are perpetrated by unaltered males.31 Finally, dogs contained or otherwise restrained on the owner’s property are responsible for more serious and fatal attacks than those roaming at large. 32 Despite the growing number of dog bites, attacks ending in human death are rare. 33

The number of canine homicides has remained fairly constant over time, at approximately ten to twenty per year. 34

As with nonfatal bites, most fatal attacks occur on the owner’s property 35 and involve child victims. 36 Of the deaths inflicted by unrestrained dogs off the owner’s property, the majority involve more than one dog. 37 Though more than twenty-five breeds have been implicated in canine homicides over the last twenty years,38

Pit bulls and pit bull mixes have been responsible for a disproportionate number; pit bulls were involved in approximately one third of the fatal attacks

Between 1981 and 199239 and a comparable proportion of serious injuries.40 These statistics, combined with an increased number of reported attacks and media-generated publicity of pit bull attacks in particular, have made pit bulls a common target of breed-specific legislation.

Because statistics indicate that all breeds bite, critics of breed-based ordinances argue that legislation which targets one or even a few breeds may not reduce the number of dog bites or serious attacks. 186 Breed is not indicative of human aggression; rather, it is only one factor to be considered in an evaluation of a dog’s biting tendency. 187

Several medical studies do not include breed as a relevant factor in biting propensity, instead listing heredity, sex, early experience, socialization and training, health, reproductive status, quality of ownership and supervision, and victim behavior.188

Despite legislation singling out pit bulls as human aggressive, a study cited by the Prince George’s County, Maryland, Vicious Animal Legislation Task Force found that between 1988 and 1993, pit bulls typically ranked no higher than fifth among breeds most responsible for severe bites.

Although pit bulls are implicated in a disproportionate number of serious and fatal attacks, critics contend that these statistics are incorrect and misleading for two reasons. First, statistics tend to combine bites or fatalities by the three breeds comprising the pit bull category into a single group rather than separate the incidents by specific breed. 194 Additionally, those statistics are generally derived from subjective determinations of the attacking dog’s breed, which, when identity is uncertain, may be ascribed to breeds with an aggressive reputation. 195

So while statistics may indicate that pit bulls are responsible for a given number of bites, the bites could have been inflicted by any combination of the three breeds, pit-bull dominant mixes, or one of the more than twenty-five breeds commonly mistaken for a pit bull. 196 Second, statistics may not accurately convey the danger posed by a particular breed because of the “floating numerator” problem. 197

Ideally, bite rates could quantify the relative dangerousness of certain breeds by comparing bites to breed. 1 98 In other words, the numerator would be the number of dog bites or canine homicides per breed and the denominator the total number of the breed in the general canine population. 199

Enforcement Costs

Many cities have repealed breed-specific legislation due to enforcement costs, which can be prohibitively high. 202 Direct costs of breed-based regulations and bans include additional animal control staff necessary for enforcement of the law, kenneling both for dogs awaiting a determination of breed and for dogs whose owners appeal such determinations, and veterinary care for kenneled dogs.20 3

Direct costs also include the legal expenses the city must pay, such as attorneys’ fees and court costs, to defend its law against constitutional challenges. 2°4 Indirect costs may include loss of city revenue, as the ban could affect the number of or attendance at dog shows or exhibits held in the county,20 5 and inhabitants, as owners may move outside city limits to protect their dogs. 206

Impact on Public Safety

Breed-based regulations and bans are frequently enacted following a highly publicized dog attack and typically target the breed involved in the attack. 210 These legislative enactments are designed in part to alleviate public fear and provide a feeling of security. 211

However, that feeling of security may be false. 212 Unless a dog subject to a breed-based ordinance is registered, spotted by law enforcement officials or neighbors, or voluntarily turned in by the owner, enforcement is difficult.213

Further, there is no guarantee that owners will abide by the law.

It is also not clear that breed-specific legislation has any impact on public safety. 216

Although the United Kingdom has prohibited the sale and breeding of pit bulls since 1991, the law has had no impact on the number of dog attacks. 217 Moreover, even if one breed is banned, owners who desire vicious dogs can circumvent the law by breeding and/or training a new vicious breed. 218 After Diane Whipple’s death, for example, a number of Presa Canario breeders received calls from potential owners wanting “‘that dog that would kill.’ ‘ 219 As dog-bite law expert and attorney Kenneth Phillips states, “‘Any dog-literally any dog-can be a bad dog if the owner is a bad owner or the breeder is a bad breeder.’ 220

Slippery Slope

Breeds responsible for canine homicides have varied over time, with Great Danes, German Shepherds, and Rottweilers taking the lead during different years.221 Banning only the currently perceived dangerous breed causes a rise in the popularity of other breeds that can be trained to attack.222

The number of bites and fatalities per breed seems to rise with a breed’s popularity. 223 For example, as the popularity of Rottweilers rose in the 1990s, so too did the number of Rottweiler-related human deaths.224 However, breed-specific legislation regulates or bans ownership only of breeds thought to be dangerous at a particular time. As public perception of a vicious breed shifts, an increasing number of breeds may be subject to regulation. 225

Breed-specific legislation fails to adequately address the dog-bite epidemic, as it targets all dogs of a specific breed regardless of past behavior rather than regulates a specific dog of any breed based on the dog’s-and owner’s-prior conduct. 288

By eliminating or regulating the breed currently generating public fear, breed-based laws ignore three basic facts: All dogs can and do inflict injury, regardless of breed; breed alone is not dispositive of human aggression, even in historically dog-aggressive breeds; and any dog can be trained and any breed can be bred to be aggressive. 289

Breed-specific legislation thus creates a false sense of public security through oversimplification of the problem and under-inclusiveness in the solution.290

In this manner, breed-specific legislation, though designed to decrease the threat to public safety, may have the perverse effect of increasing the risk of serious attack or death by failing to regulate dangerous dogs that do not fall within the statutorily proscribed breed.29′

Breed-specific legislation is also practically, as opposed to constitutionally, over-inclusive, resulting in an inefficient allocation of limited financial and human resources. The imposition and enforcement of breed-based regulations and bans is an expensive endeavor 292 with no clear indication of effectiveness. 293 At the same time, there is a real concern that existing dangerous-dog laws are ineffectively enforced due to a lack of funding. 294

Because breed-based laws do not differentiate between vicious and docile members of the target breed, 295 all dogs of a particular breed are necessarily subject to regulation. Already limited local resources must be split inefficiently between investigating complaints regarding dogs that have exhibited objectively observable vicious behavior and investigating complaints that a dog is of a subjectively determined target breed, a problem compounded when there is an unknown number of the target breed in any given population.296

CONCLUSION

Enacting effective and efficient legislation to protect Americans from the threat posed by dangerous dogs is a necessary step in combating the dogbite epidemic.

The constitutionality of the proposed regulation cannot be the definitive or final consideration, however; rather, local legislatures must evaluate the practical effect of the law by analyzing objective factors that include statistical evidence, enforcement costs and available resources, and other relevant considerations.

Legislation designed to reduce the number of bites and serious attacks must balance the need to protect society from dangerous dogs with the rights of responsible dog owners by emphasizing the need for and importance of responsible ownership. Aided by strict enforcement and breed-neutral supplemental legislation, dangerous-dog laws can effectively and efficiently provide a solution to the dog-bite epidemic.